Is Your Decision Reasonable?

During a disciplinary interview the employee should always be given an opportunity to present their case and any mitigating circumstances to the allegations against them. These are recorded during the interview by the note taker. But then what? Unfortunately many employers do not take into consideration the employee’s mitigating circumstances into account when making their decision as to what sanction to apply or even dismiss.

In a recent case Vincent t/a Shield Security Service v Hinder the employer dismissed the employee for smoking on a client’s premises. The employee was employed as a security guard. During his shift there was a break in which went undetected. The next morning employees came in and realised what had happened and took the security guard round the premises to show him. The security guard started to smoke inside the premises for which he was called to a disciplinary hearing for Gross Misconduct.

The employee had admitted to smoking on the premises, two other employees had also witnessed him smoking but they had failed to stop him or remind him that the premises did not allow smoking. The employee apologised for smoking and explained that he had become confused at that moment as he was being shown that the premises had been broken into on his guard.

Despite having an unblemished record of work with the company for over five years, his admittance and reasoning why he was smoking, the company dismissed the security guard.

This case ended up in an Employment Tribunal and subsequently in an Employee Appeal Tribunal where it was agreed that the employer had not taken into account the mitigating circumstances presented by the employee.

The message to employers is to take into account any mitigating circumstances the employee being disciplined is presenting, consider alternative sanctions even at Gross Misconduct level. If the decision is to dismiss then make sure contemporaneous notes are kept of what alternative sanctions were considered and why they were rejected and the employee was dismissed. If and when the dismissed employee takes the employer to employment tribunal, the employer can demonstrate and argue with evidence what was considered and that their decision is within a band of reasonable responses.